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TMI Blog2006 (12) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners, by a letter dated 4th October,1994 sought confirmation that entertainment tax to be levied at that time would be 3.75% of value of consolidated ticket. By a reply dated 12th October,1994, Respondent No. 2 confirmed the same. However, by a Communication dated 7th January,1995 by Respondent No. 3 in view of clarification received from Revenue and Forest Department of Respondent No. 1 vide letter No. ENT/3894/CR-227/7-1 dated 19th December,1994, informed Petitioners that they would be required to pay duty at the rate of 7.5% and not 3.75%, and called upon the Petitioners to pay the same within seven days. Petitioners preferred Writ Petition No. 37 of 1995 challenging legality and validity of communication dated 7th January,1995. By an order of this Court, Petitioners were permitted to withdraw the Petition with a liberty to file a fresh Petition. The Petitioners made a representation to Respondents. The latter reiterated their stand. Petitioners have paid duty under protest and continue to do so. The Respondents seek to recover entertainment duty at the rate of 7.5% in respect of entry to park for the period of 16th September,1994 to 24th December,1994 and at the rate of 15% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive meaning to statute which will serve the spirit and intention of legislature. Also in the case of A.V. Fernandez v. State of Kerala [1957]1SCR837 in paragraph No. 29, the Hon'ble Supreme Court had held that It is no doubt that in construing fiscal statutes and in determining the liability of a subject to tax, one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. Further, it laid down that... if the case is not covered within the four corners of provisions of taxing statute, no tax can be imposed by inference or analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. Reliance was also placed on Sales Tax Commissioner v. Modi Sugar Mills [1961]2SCR189 . The case disregarded equitable considerations and presumptions in case of interpretation of a taxing statute. 6. In the light of the cases cited, the learned Senior Counsel Dr. Tulzapurkar strongly contended that the Petitioners are entitled to the benefits of the concessional rate of duty provided in Sub-section 5(a) of Section 3 of the Act, inserted by Maharashtra Ordinance N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the argument of the Petitioners that Respondent No. 2 himself having accepted effective rate of duty payable in respect of amusement park at the rate of 3.5% for the period from 16th September,1994 to 24th December,1994, impugned action seeking to recover at the rate of 7.5% without affording any opportunity of being heard to the Petitioners is in gross violation of principles of natural justice and the same is a nullity. 11. The petitioners have prayed for a Writ prohibiting Respondents, their servants and agents from, in any manner recovering the entertainment duty at the rate of 7.5% during 16th September,1994 to 24th December,1994 and at 15% thereafter. Further, the Petitioners have prayed for a Writ of Certiorari to examine the legality and validity and quash impugned communication dated 7th January,1995. 12. The learned Government Pleader, Mr.Belosey strongly contended that Section 3(2) of the Act ought to be construed to exclude amusement park . Mr.Belosey submitted that there was no necessity to incorporate the words other than amusement park , in Section 3(2) of the Act. Mr.Belosey submitted that by resorting to Section 3(2) of the Act, the Petitioners are tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no provision in law to seek to recover the said refund back on ground of doctrine of unjust enrichment, however, the learned Senior Counsel submitted that the said doctrine is not applicable in the present case. It was contended that there is nothing on record to show that the Petitioners have recovered any entertainment duty from visitors of Park, as no entertainment duty was separately charged and recovered. 17. Further, as it was contended by the learned Senior Counsel that impugned action of Respondent in seeking to recover the amount already refunded on the ground of unjust enrichment would render provisions of Section 9C of the Act redundant. 18. The Petitioners also submitted that the impugned communications seeking to recover refunded amount were issued in gross violation of principles of natural justice, denying an opportunity of being heard before issuance of the communications. The Petitioners finally submitted that the impugned actions communications are invalid, being violative of Articles 265 and 300A of Constitution of India and are liable to be set aside. 19. The Petitioners have prayed for in Writ Petition No. 2009 of 1998 for a writ of Certiorar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideo exhibition] are provided fairly on permanent basis, on payment for admission; (a): entertainment includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment, [or, in the case of television exhibition with the aid of any type of antenna with a cable network attached to it or cable television, for which persons are required to make payment by way of contribution or subscription or installation and connection charges or any other charges collected in any manner whatsoever] [but does not include magic show]. (b): payment for admission [in relation to the levy of entertainments duty,] includes (i) any payment made by a person who, having been admitted to one part of a place of entertainment, is subsequently admitted to another part thereof for admission to which a payment involving duty or more duty is required, Section 3(1): There shall be levied and paid to the state Government on all payments for admission to any entertainment [except in the case of video games exhibition by means of any type of antenna or cable television] a duty (hereinafter referred to as entertainments duty ) at the following rates, namely: (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only if, the amusement park is continued at the same place where it has commenced and continuously for ten years and if it is not so continued, the duty shall be levied from the date of commencement of the amusement park at the rates specified in Clause (b) of Sub-section (1) or as the case may, Sub-section (2) of Section 3 and the proprietor shall be liable to pay the same.] Section 9C: Where a proprietor has paid entertainment duty in excess of the duty payable, the amount of duty paid in excess shall, on an application made by the proprietor in that behalf, be refunded to him by the Collector after such verification as may be necessary and in such manner as may be prescribed. 24. A bare perusal of Section 3(1)(b) proviso, read with Section 3(2) of the Act makes it clear that the entertainment duty to be levied for Amusement Park would be fifty percent of 15%, which comes to 7.5%. Thereafter if one takes into account Section 3(5)(a) (b) of the Act, it would be fifty percent of the above. That is to say 3.75%. Therefore if one were to read all the above provisions, i.e. Section 3(1)(b), Section 3(2) and Section 3(5)(a) (b) of the Act, for the first three years, in case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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